United States v. Jones

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 7, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 07-5005
(D.C. No. 05-CR-91-TCK)
C URTIS D EO N JO N ES, also known (N.D. Okla.)
as Straight Face, also known as
Frankfort, also known as Deon,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and HO LM ES, Circuit Judges.
Defendant Curtis Deon Jones pled guilty to RICO conspiracy in violation of
18 U.S.C. §§ 1962 and 1963. Pursuant to the plea agreement, M r. Jones waived
his right to “directly appeal the conviction and sentence pursuant to 28 U.S.C.
§ 1291 and/or 18 U.S.C. § 3742(a) . . . and. . . waive[d] the right to collaterally
attack the conviction and sentence pursuant to 28 U.S.C. § 2255, except for
*
This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
claims based on ineffective assistance of counsel which challenge the validity of
the guilty plea or this waiver.” M ot. to Enforce, Attach. 1, at 3. He was
sentenced to 260 months’ imprisonment, which was w ithin the applicable
advisory guideline range for the offense of 210 to 262 months.
M r. Jones filed a notice of appeal challenging the district court judgment.
The government has filed a motion to enforce the appeal waiver in its plea
agreement with M r. Jones. In response, M r. Jones’s attorney filed a motion to
withdraw in which he indicated that he believed it would be “a violation of the
Rules of Professional Conduct” to continue representation of M r. Jones. M ot. to
W ithdraw, at 2; see Anders v. California, 386 U.S. 738, 744 (1967) (authorizing
counsel to request permission to withdraw where counsel conscientiously
examines a case and determines that an appeal would be wholly frivolous). This
court gave M r. Jones an opportunity to file a pro se response to the motion to
enforce, see id., and granted him an extension of time to file his response to the
motion. To date, M r. Jones has not filed a response to the motion to enforce.
Under Anders, we have conducted an independent review and examination
of the motion to enforce. See id. This court will enforce a criminal defendant’s
waiver of his right to appeal so long as the following three elements are satisfied:
(1) “the disputed appeal falls within the scope of the waiver of appellate rights,”
(2) the defendant’s waiver of his appellate rights was knowing and voluntary, and
(3) enforcing the waiver w ill not result in a miscarriage of justice. United States
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v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). W e have
reviewed the plea agreement, the transcripts of the plea and sentencing hearings,
and the response from M r. Jones’s counsel, and under Hahn we conclude that
M r. Jones has waived his right to appeal. See id.Accordingly, we GRANT the government’s motion to enforce the appeal
waiver in the plea agreement, DISM ISS the appeal, and DISM ISS counsel’s
motion to withdraw as moot. The mandate shall issue forthwith.
Entered for the Court
PER CURIAM
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